ESLICK v KELLY [1989] NSWCA 75

ESLICK v KELLY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, CLARKE and MEAGHER JJA 22 February 1989, 22 February 1989 [1989] NSWCA 75

KEY WORDS: Defendant's negligence admitted — bad facial scarring — general damages $60,000.00 — no error of law alleged — whether general damages excessive. DAMAGES — Defendant's negligence admitted — bad facial scarring — general damages $60,000.00 — no error of law alleged — whether general damages excessive. ORDERS 1. Appeal dismissed with costs.

Meagher JA In this matter Mr. Kelly, the plaintiff, is suing Mr. Eslick, the defendant, in respect of an accident which occurred on 30 April. 1982. The negligence of the defendant is admitted and no question arises as to contributory negligence. The sole question which does arise is whether the verdict of his Honour is or is not excessive. The verdict was $75,196.38. That was composed of general damages of $60,000.00, past income an agreed amount, $880.00, and out of pocket expenses as agreed of $2,316.38.

The evidence disclosed that as a result of the accident the plaintiff was very badly disfigured and is permanently scarred, that even now he has, and will have for the rest of his life, a fairly gross cosmetic disability on his right cheek. He has some other disabilities arising from the accident such as headaches which continue to this day. He also lost a tooth, he commenced to suffer depression, he was unnaturally fearful of motor vehicles. He also has minor eye trouble in his right eye.

In these circumstances the appellant does not allege that his Honour committed any error of law and that there is no allegation, nor could there be, that his Honour took any irrelevant factor into account or overlooked some relevant factor or otherwise misdirected himself. The sole ground of the appeal is that the assessment of damages is so high as to be wholly disproportionate to the injuries suffered, a difficult question on which different minds may come to different conclusions.